Judges Leaning Toward Profanity Remand/Stay

According to attendees at the hearing, a three-judge panel of a federal appeals court in New York seemed amenable to letting the FCC take a second look at four profanity findings the commission issued in March, so long as the FCC did not use those decisions as precedent in the interim.

According to an FCC official, the commission would be willing to stay that enforcement so long as it was narrowly tailored and not a blanket stay on enforcement of all "fleeting profanity" indecency findings.

The stay would last only for the expedited review period--about two months--the FCC has promised.

At press time, the court had not ruled, though the judges had suggested they could do so by Tuesday afternoon, and odds were lengthening on any decision before Wednesday.

If the court agrees to the remand, the commission will seek station input and possibly modify or reverse the decisions.

According to network execs at the oral argument in the Second Circuit, two of the three judges appeared to be leaning toward granting the FCC’s request, but only with a stay. An FCC official saw it the same way, though the caveat is that judges sometimes play devil’s advocate.

CBS, NBC and Fox preferred that their court challenge of those four decisions proceed to trial without the FCC getting a second look, though they have said they would go along with the remand if it included a stay of enforcement. The affiliate associations--except Fox’s--and ABC supported the FCC’s request for the remand.

The proceedings Tuesday only took about 20 minutes, said one observer, with two of the judges present and a third teleconferenced in.

One of the judges asked why the FCC was looking to delay the start of the court case in this instance, but was pushing for expedited hearing in the Third Circuit of CBS’ challenge to the Janet Jackson fine.

The FCC lawyer, Eric Miller, said that while CBS had had three chances to make its arguments in the Jackson case, the FCC had not had the opportunity to hear all sides of the argument in the four profanity rulings. "Why?," asked one judge, "did your forget about due process?"

The FCC has said that it made an error in not giving stations a chance to appeal the four findings--against s- and f-words on network shows.

It bypassed the normal procedure, the commission has said, because it did not fine or penalize the stations. For one thing, the infractions occurred before the FCC declared its intention to step-up enforcement of existing rules. For another, it was seeking to provide guidance stations had sought on clarifying its policy.